R v Foulis

[2015] SASCFC 90

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v FOULIS

[2015] SASCFC 90

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)

13 July 2015

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - RECEIVING - STOLEN PROPERTY

FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant pleaded guilty to the offences of aggravated firearm possession whilst unlicensed, trafficking in methylamphetamine and theft by receipt.  He was subject to a two-month suspended sentence bond at the time he committed the offences.  The suspended sentence was revoked.  He was sentenced to a total of imprisonment of five years, with a non-parole period of three years and four months for the offending and breach of bond.

On appeal, it was argued that the sentence was manifestly excessive and the appellant was not afforded procedural fairness as a result of the trial Judge referring when sentencing to evidence of trafficking in ecstasy, which was not the subject of the charge, as well as trafficking in methylamphetamine.  These remarks were in the absence of any such submissions as to trafficking in ecstasy being made by the prosecution.

Held (Gray and Sulan JJ, Kelly J agreeing):

The Judge's reference to ecstasy indicated it was a factor relied upon by him in sentencing.  The appellant was not given an opportunity to address the presence of ecstasy. 

The sentence imposed was not manifestly excessive in all the circumstances.

Appeal dismissed.

Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11, s 34A; Criminal Law Consolidation Act 1935 (SA) s 134(1), referred to.
R v Kong (2013) 115 SASR 425; R v Viola [2015] SASCFC 2; R v Pollitt [2007] SASC 382, discussed.

R v FOULIS
[2015] SASCFC 90

Court of Criminal Appeal:  Gray, Sulan and Kelly JJ

GRAY AND SULAN JJ.

1. This is an appeal against sentence.

2. The appellant and defendant, Terry Richard James Foulis, following his pleas of guilty, was sentenced by a Judge of the District Court in respect of the offences of trafficking in methylamphetamine,[1] aggravated possession of a loaded and concealed .22 calibre handgun about his person whilst not holding a firearms license,[2] and theft by receipt of a motor vehicle.[3]  All offences were committed at a time when the defendant was subject to a two-month suspended sentence of imprisonment for driving under disqualification. 

   [1]    Controlled Substances Act 1984 (SA) s 32(3).

   [2]    Firearms Act 1977 (SA) s 11.

   [3]    Criminal Law Consolidation Act 1935 (SA) s 134(1)

3. When sentencing, the Judge noted that the defendant was entitled to a sentencing discount of up to 40 per cent because of his very early pleas. 

4. In respect of the firearms offence, the Judge imposed a term of imprisonment of three years and four months, having reduced the sentence by two years and two months on account of the early plea.  The Judge ordered that the handgun and ammunition be forfeited to the Crown and the defendant be subject to a firearms prohibition order.[4]

   [4]    Firearms Act 1977 (SA) s 34A.

5. For the offence of trafficking in methylamphetamine, the Judge imposed a term of imprisonment of two years and five months, having reduced the sentence by one year and seven months on account of his early plea. 

6. In respect of the offence of theft, the Judge imposed a term of imprisonment of one year and three months, having reduced the sentence by nine months on account of his early plea.  The Judge considered that the firearm offending and theft offence were connected with the drug trafficking and, as a consequence, he made the sentences for those two offences partially concurrent with the sentence for the drug offending, resulting in a total sentence of four years and 10 months.  The Judge said that he achieved this result “by making 17 months of the two year, five month sentence for trafficking in methylamphetamine concurrent with the sentence he imposed for the firearms offence, and nine months of the 15 months sentence of imprisonment for the theft by receiving offence concurrent on that total”. This led to a period of imprisonment of four years and 10 months. 

7. The Judge determined that it was appropriate to revoke the suspended sentence leading to a further term of imprisonment of two months.  As a consequence, the defendant faced a total period of imprisonment of five years. The Judge fixed a non-parole period of three years and four months.

   The Circumstances of the Offending

8. Police attended at the defendant’s home on 12 June 2014. The defendant was home and answered the door to police. Prior to police searching the defendant, he produced to police a loaded handgun which he had hidden down his pants.

9. The police searched the house and found in a handbag 1.45 grams of methylamphetamine along with some digital scales and $450.00. The defendant admitted in a record of interview that the methylamphetamine was his.

10. The defendant said during the record of interview “I use them and I sell what I can to pay for what I use”. The defendant said he sold the methylamphetamine in points, being 0.1 of a gram. There was evidence that, in addition to the methylamphetamine, police located two ecstasy tablets in the drawer of an entertainment unit in one of the bedrooms of the house and $650.00 in a bedside table.  There was also evidence that in another bedroom, police found a press seal bag containing 0.26 grams of ecstasy powder in a bedside drawer and $800.00.  In the driveway of the defendant’s home police found a stolen Nissan motor vehicle valued at less than $2,500.00.

    Personal Circumstances

11. The defendant was 28 years of age at the time he was sentenced.  He left home at the age of 13.  He had been exposed to drug use by his mother’s partner.  He had also suffered violence from his mother’s partner and friends of his mother’s partner.

12. His criminal antecedents did not include any firearms or drug offences.  His antecedents primarily concerned road traffic and motor vehicle offences and, apart from receiving suspended sentences for driving while disqualified, there had been no other orders for imprisonment. 

13. The sentencing Judge summarised the defendant’s personal antecedents as follows:

    You have had a very unsettling upbringing. Your father committed suicide when you were only 10 years old. You felt to blame for that. However, that dissipated later in life when you discovered that your father had sexually abused your older brother. You experienced learning difficulties at school and, not surprisingly, you displayed attention seeking behaviour in the classroom.

    I have received and read a letter from your partner, which also sets out your personal situation and traumas in life. Your partner of four years sadly miscarried in the period leading up to your offending. This, in part, explains your erratic behaviour. She is very supportive of you. She wrote that following the miscarriage, that naturally caused extreme mental and emotional distress for both of you. Due to that trauma, she has been extremely depressed and anxious and is in need of your support. She is finding it increasingly difficult to cope on her own. It was submitted that she has no tolerance for drug use, although, as I observed during the course of submissions, you were abusing drugs and indeed selling drugs whilst the two of you were living together.

14. The defendant has a long history of alcohol and drug abuse.  He commenced drinking alcohol when he was 12 years of age and had become an alcoholic at the age of 16.  He commenced using drugs and was selling relatively small quantities to support his drug addiction.  The sentencing Judge accepted a report of Dr Fugler, a psychologist, who observed that the defendant had developed paranoid ideation and had suffered a brief period of drug-induced psychosis.  Dr Fugler concluded:

    Your client has a Stimulant Use Disorder (DSM 5 304.40-severe-in early remission) and should be involved in a drug and alcohol treatment programme with a duration of at least 12 months, together with counselling by an experienced psychologist or psychiatrist to address issues related to past trauma and guilt.  The opportunity to obtain appropriate assistance would not be likely to occur within a custodial setting but could be provided in the wider community where Mr Foulis appears to have the benefit of a stable, supportive partner.

15. The defendant made full and frank admissions when arrested by police.  He pleaded guilty to the offences in the Magistrates Court.  He is contrite and, with the support of his partner, has good prospects of rehabilitation.

16. The defendant contends that both the head sentence and non-parole period are manifestly excessive. 

17. As to the drug offending, counsel for the defendant submitted that, having regard to the small quantity of methylamphetamine the subject of the charge, the starting point of four years’ imprisonment was manifestly excessive. 

18. The defendant was using approximately 1 gram of methylamphetamine per day.  Counsel for the Director submitted that this would have cost him at least $1800 per week.  It follows that the defendant needed to sell methylamphetamine regularly to maintain his habit. 

19. The defendant told Dr Fugler that he had been using methylamphetamine over a six to seven-month period.  The consequence of the defendant’s use was that he suffered bouts of paranoia.  The defendant had a CCTV set up in his home to monitor people who came to his home.  This suggests that there was an element of sophistication in his dealing.  That fact is also relevant to the firearms offence, as he was aware that police were at his front door, and he then hid the firearm in his underpants. 

20. Counsel for the Director submitted that the starting point of four years’ imprisonment for the drug offending is within the range of sentences for a person dealing in methylamphetamine.  It was submitted that the starting point of five years and six months’ imprisonment for the firearms offence, although at the higher end of the scale for this offending, was not manifestly excessive.  The offending involved a pistol which had been secreted in the defendant’s underpants.  In the circumstances, although the starting point was, in our opinion, high, for reasons which follow we do not consider it was manifestly excessive. 

21. The starting point of two years’ imprisonment for the theft was also at the higher end of the scale for this offending and this offender. 

    Discussion

22. The Judge discounted the sentences by approximately 39 per cent for the pleas of guilty.  He made a substantial period of each sentence concurrent, resulting in an overall sentence of four years and 10 months’ imprisonment, plus the two months for the suspended sentence, with a non-parole period of three years and four months.  When considering the final sentence, it cannot be said that the sentence was manifestly excessive.  Each offence was a separate incursion into criminal offending.  The Judge was correct in dealing with the offences separately.[5] 

    [5]    R v Viola [2015] SASCFC 2.

23. In R v Kong,[6] (Kourakis CJ, Sulan and David JJ) observed that the quantity of drug involved in a particular charge is, to an extent, a matter of chance in the case of ongoing trading.  The approach is to consider the extent of a defendant’s involvement in the trading of a drug or drugs the subject of the charge. 

    [6] (2013) 115 SASR 425 at [90].

24. It is to be accepted that the defendant is to be sentenced for the offence charged.  However, the surrounding circumstances in the case of a person trading in drugs is significant.  This Court has stated on numerous occasions that general deterrence must be given great weight when considering the appropriate penalties for ongoing trading in prohibited drugs.

25. The firearms offence is a serious incursion into criminal offending.  As Gray J observed in R v Pollitt,[7] the possession of loaded firearms places the public, and in this case the police, in danger.  General deterrence plays a significant role when sentencing for firearms offences. 

    [7] [2007] SASC 382.

26. As we have indicated, the individual penalties for the firearms offence and the theft offence in this case were high.  However, in making the sentences substantially concurrent, it cannot be said that the overall sentence and non‑parole period is manifestly excessive.

27. We therefore reject this ground of appeal.

    The Appeal

    Procedural Fairness

28. Attention was drawn to the fact that the sentencing remarks noted that there was evidence of drug trafficking in ecstasy as well as methylamphetamine:

    Police officers raided your house, where you were found with the handgun down your underpants. There was evidence of drug trafficking in the form of methylamphetamine and ecstasy. Cash, deal bags and digital scales were located by the police. Implements used to smoke methylamphetamine were also found, confirming you also used the drugs you sold. All of the drugs, paraphernalia and cash will be forfeited to the Crown.

29. Attention was also drawn to a report provided by the Judge to the Criminal Appeals Coordinator dated 18 November 2014.  In that document, the Judge reported:

    However, in my view, the evidence, which was not disputed by the Applicant, revealed that he had also been trafficking in ecstasy (MDMA).  There were two ecstasy tablets found in the Applicant’s bedroom, alongside a large amount of cash. (See the statements of Michael Cartwright and Benjamin Walton).

    In addition, when the digital scales were analysed, both methylamphetamine and MDMA (ecstasy) were detected on the scales, supporting the inference that he was trafficking in more than one drug.

    Whilst I made the observation, in my remarks, that he was also trafficking in ecstasy, he was not punished or sentenced for such. The sentence I passed upon the Applicant was on the basis that he had been selling methylamphetamine, to finance his own use of that drug, as I consider I set out in my remarks.

30. On the appeal, it was pointed out that the Judge made the above finding and reported in the terms that he did in the absence of the prosecution making any submission concerning ecstasy and without the Judge giving any notice to the defendant during sentencing submissions that he was going to address the topic of trafficking in ecstasy.  It was further pointed out that the reference in the letter to the defendant not disputing that he had trafficked in ecstasy was not to the point;  the defendant had at no time admitted that he had engaged in trafficking ecstasy. 

31. It was the submission of counsel for the defendant that notice should have been given of the proposed finding in regard to trafficking in ecstasy.  Had notice been given, the defendant would have been afforded the opportunity to challenge the assertion.  As a consequence, counsel submitted that the sentence should be set aside on the basis that the sentencing process was procedurally unfair. 

32. Counsel for the Director submitted that a careful reading of the Judge’s report indicated that the evidence from which he drew an inference of trafficking in ecstasy was not disputed.  However, this submission does not address the substance of the complaint.  The Judge’s sentencing remarks and his letter demonstrate that he considered that his finding that the defendant had also trafficked in ecstasy was a relevant background matter in which to have regard to the sentence in respect of trafficking in methylamphetamine.

33. In our view, the sentencing Judge did not accord the defendant procedural fairness.  The prosecution had made no submission at all that there was a background of trafficking in ecstasy.  The defendant was unaware that such a consideration was in the Judge’s mind and would form part of his sentencing remarks.  Sentencing courts have treated as a relevant matter to be considered that a person charged with drug offending has engaged in an ongoing course of conduct and that the charged offending forms part of a continuum.  We consider that it is a factor that would operate to reduce the leniency that might otherwise be accorded to, in particular, a young offender.

34. Counsel for the Director submitted that the defendant was not entitled to leniency.  It was said that the defendant’s acceptance that there was a background in trafficking excluded any leniency and that as a consequence the want of procedural fairness was of no significance. 

    Conclusion

35. Ultimately, the question to be determined is whether the sentence was manifestly excessive.  Although we are of the view that the Judge’s reference to ecstasy suggests that it was a factor in his consideration of the sentence, for the reasons earlier expressed we conclude that the final sentence was not manifestly excessive.

36. We dismiss the appeal.

37. KELLY J:             I agree that the appeal should be dismissed for the reasons given by Gray and Sulan JJ